Opinion 91-24

This
opinion represents the views of the Office of the State
Comptroller at the time it was rendered. The opinion may no
longer represent those views if, among other things, there have
been subsequent court cases or statutory amendments that bear on
the issues discussed in the opinion.

COUNTY LAW, §265; TOWN LAW, §§198(1)(f), 202(5), 209; VILLAGE
LAW, §14-1436: A town, on behalf of a town sewer district, may
contract with a county to provide sewer service to properties
within a county sewer district. The cost of such a contract
would be financed by the county in the same manner as other
operation and maintenance costs incurred by the district.

This is in reply to your inquiry concerning the authority
of a town sewer district to provide service outside the
district and the manner in which the outside users may be
charged for that service. You indicate that, some years ago, a
trunk line was constructed to serve the town's consolidated
sewer district. This line passes through a village and
connects to a sewage treatment plant operated by a county sewer
district. The properties through which the trunk line passes
in the village are within the boundaries of the county
district. You also indicate that after the construction of the
town's trunk line, a development located within the village and
within the boundaries of the county sewer district connected
its sewers to the trunk line without the approval or knowledge
of the town. After this connection was discovered, the town
began to seek the appropriate means of charging the properties
within the development a proportionate share of the
indebtedness incurred by the town in constructing the trunk
line. You ask whether the town, on behalf of the town
district, and the county, on behalf of the county district, may
enter into an agreement under which the cost of serving the
properties in the development would be raised through
assessments by the county district.

Pursuant to Town Law, §198(1)(f), the town board has the
power, on behalf of a sewer district, to:

enter into a contract or contracts with
another sewer district or with any
incorporated city or village or with one or
more corporations or individuals for the joint
disposal of sewage, and the expense of such
joint disposal of sewage shall be apportioned
between the contracting parties in proportion
to the areas served, volumes of sewage
disposed of or the benefits received by each
contracting party.

This Office has previously expressed the opinion that this
section authorizes a town board, on behalf of a sewer district,
to enter into contracts to provide sewer services to other
sewer districts, cities villages, corporations or individuals
outside the district (1971 Opns St Comp No. 71-358, unreported;
10 Opns St Comp, 1954, p 52; 4 Opns St Comp, 1948, p 83). The
provision of service to outside users is in the nature of a
contractual transaction and the terms and conditions of the
contract, including the consideration to be paid, are matters
which, in the first instance, must be determined by the
contracting parties (see 1986 Opns St Comp No. 86-33, p 54).
Amounts paid by outside users, including other sewer districts,
pursuant to contracts may properly include those capital and
operation and maintenance costs attributable to the provision
of the outside service (1973 Opns St Comp No. 73-776,
unreported; 1971 Opns St Comp No. 71-358, supra; 4 Opns St
Comp, 1948, supra).

A county, on behalf of a county sewer district, is
authorized to contract "... for the collection, conveyance,
treatment or disposal of sewage ... with any public corporation
or any county or town on behalf of any improvement district and
also with any other sewer district, or private corporation"
(County Law, §265[a][2]). The cost of any such contract would
be financed in the same manner as the other operation and
maintenance costs incurred by the district (County Law, §§266,
267, 270, 271; see also Y.M.C.A. v Rochester Pure Waters
District, 44 AD2d 219, 354 NYS2d 201, affd 37 NY2d 371, 372
NYS2d 633).

Based on the foregoing, it is our opinion that the town, on
behalf of the town sewer district, may contract with the
county, on behalf of the county sewer district, to provide
sewer service to the development located within the boundaries
of the county district. The consideration stated in the
contract, which, as noted above, may include both the capital
and operation and maintenance costs attributable to the town
sewer district's provision of the outside service, would be
financed by the county in the same manner as the other
operation and maintenance costs of the county district.

In the absence of a contract with the county, there are
several methods available to the town in seeking to impose an
equitable share of the town district's costs on the properties
in the development. The town, on behalf of the district, may
charge the properties individually for the use of the trunk
line (Town Law, §198[1][f]). As discussed above, the charges
paid by the outside users are contractual and collection
thereof may be enforced by, among other means, action on the
contract (see 26 Opns St Comp, 1970, p 272). There is,
however, no authority to levy the amount of the unpaid charges
on the town tax roll (see 12 Opns St Comp, 1956, p 17; cf.
Town Law, §198[1][k]). Alternatively, the town sewer
district, with the consent of the village, could be extended
to include the properties in the development which are
connected to the trunk line (see Town Law, §§190, 209; see
also 1988 Opns St Comp No. 88-72, p 140, in relation to the
establishment of a town sewer district within a county sewer
district). If the town district is extended, the town board
may attribute a portion of the cost of the trunk line to the
extension and assess that amount against the properties in the
extension on the same basis as in the parent district (see
Town Law, §202[5]). Also, if it is determined that the
village has primary responsibility to provide sewer service to
the properties in question (see Village Law, §14-1400; 1983
Opns St Comp No. 83-16, p 16; 9 Opns St Comp, 1953, p 99), the
town, on behalf of the sewer district, could contract with the
village for the district to provide sewer service to the
properties in the development (Village Law, §14-1436). The
consideration stated in such a contract would be raised by the
village in the same manner as the other costs of the village
sewers are raised (see Village Law, §§14-1406, 14-1410; see
also 1990 Opns St Comp No. 90-41, p 92).